FEDERAL COURT OF AUSTRALIA

Doolan on behalf of the Butchulla People Land and Sea Claim #2 v State of Queensland [2013] FCA 602

THE COURT ORDERS THAT:

Ms Lezia McIntosh cease to be a party to this proceeding pursuant to s 84(8) of the Native Title Act 1993 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 18 April 2013 I ordered that a respondent to the Native Title Application, Ms Lezia McIntosh, show cause why she should not be removed as a party to this proceeding. I did so in circumstances where:

    on 27 March 2013 I had ordered the applicant and Ms McIntosh to attend a case management conference before Deputy Registrar Fewings in the Brisbane Registry;

    the case management conference was to take place no later than 18 June 2013;

    the purpose of the case management conference was to identify and, if possible, resolve any interests of Ms McIntosh which would be affected by determination of native title in these proceedings;

    I had ordered the matter be listed for directions on 18 April 2013 in circumstances where, on 10 April 2013, Ms McIntosh had communicated with another Deputy Registrar of the Court, indicating her objection to complying with my orders of 27 March 2013 and to attending case management with Deputy Registrar Fewings;

    no appearance was entered by Ms McIntosh at the directions hearing of 18 April 2013; and

    such evidence as was before the Court supported an inference that, in fact, Ms McIntosh was actually a member of the native title claim group and, in the absence of any other interest identified by Ms McIntosh, ought not be a party to the proceeding.

2    The power of the Court to remove a party named in native title proceedings is conferred by s 84 of the Native Title Act 1993 (Cth) (“Native Title Act”), which so far as relevant in this case provides:

…

Dismissing parties

(8)    The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)    The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)    the following apply:

(i)    the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)    the person’s interests are properly represented in the proceedings by another party; or

(b)    the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

3    Further, it is proper to read s 84(8) with s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the Court to, inter alia, exercise its powers so as to promote the timely and efficient use of the judicial and administrative resources of the Court and the timely and efficient determination of cases before the Court.

The claim description and evidence of Ms McIntosh

4    The Form 1 Native Title Determination Application-Amended Claimant Application filed on 3 June 2010 in this proceeding identifies the native title claim group as the Butchulla People, being descendants of a number of apical ancestors including “Mother of John and Rosie Broome”.

5    In her affidavit sworn 1 May 2013, Ms McIntosh identifies herself as being the great-great-granddaughter of Queen Maria of Childers and great-granddaughter of Emma Broom (nee Jones) born at Pialba. Materially, Ms McIntosh claims further that:

    Although her grandmother Esther May Denduck (nee Broom) was cited on her death certificate as being the daughter of John and Emma Broom, there is evidence that the father of Esther May Denduck was not John Broom, but rather Woppi Broom.

    John Broom was not Queen Maria’s son, and there is no concrete connection between John Broom and Queen Maria.

    her evidence has been misused by persons associated with the Butchulla claim.

    the Dippil/Kabi people rather than the Butchulla people are the traditional owners of all the land and marine regions between the Caboolture River and the Burnett River.

    her family has been “left out of all native title claim groups”.

6    Issues taken by Ms McIntosh with this native title application are not new. On 1 December 2010 Ms McIntosh filed a Form 5 under the Native Title Act claiming descent from “the Yalibara Clan from the Burrum River region and Thuribura of Pialba”. On 4 May 2012 Ms McIntosh attempted to file a separate Form 1 application over an area in south eastern Queensland, however the application was not accepted.

7    It is clear that steps have been taken by the applicant to investigate Ms McIntosh’s claims, including correspondence and meetings between Ms McIntosh and officers of Queensland South Native Title Services (“QSNTS”) representing the applicant. In June 2012, at the request of QSNTS, anthropologist Dr Lee Sackett prepared a report entitled “Butchulla Native Title Claims: Supplementary Report on the Claims of Ms Lezia McIntosh”, a copy of which is annexed to the affidavit of Ms Susan O’Brien, research officer employed by QSNTS, sworn 10 May 2013. In that report Dr Sackett states (in summary) that:

    In preparing his research concerning the Butchulla native title claims he interviewed Ms McIntosh on 1 October 2011.

    There is evidence that both John Broom and Rosie Broom were the children of a non-Aboriginal man and either the same or different mothers. Anthropologist Norman Tindale recorded that they had the same mother.

    One of John Broom’s children was the maternal grandmother of Ms McIntosh.

    There was contemporary anthropological evidence identifying John Broom as a “Batjala” person.

    Butchulla people were associated with Fraser Island as early as 1842 and have continued to be associated with Fraser Island in the intervening years.

    Anthropological evidence concerning the descendants of John Broom and their Butchulla identity is strong.

    Claims of Ms McIntosh that her ancestors were Yalibura people of the Dundora/Dundubara group of the Kabi/Kabi-Balgoin nation appear to have been developed on a false premise. This false premise can be summarised as:

    Ms McIntosh’s ancestors were of or from a particular area;

    anthropologists had linked and mapped that area to particular named groups; and

    it therefore followed that her ancestors were or must have been members of those named groups.

    Although the Bundaberg area with which John Broom and many of his descendants were associated is outside Butchulla country, this does not mean that he and they were not Butchulla.

Consideration

8    A person is entitled to be a party to proceedings under the Native Title Act if, inter alia, that person has an interest in relation to land or waters that may be affected by determination of the proceedings: s 84(3)(a)(iii). On 1 December 2010 Ms McIntosh and others filed a Form 5 Notice of intention to become a party to an application on behalf of the Dundubura People, claiming that the relevant interest for the purposes of the section was that of the “descendants of the Yalibura Clan from the Burrum River region and Thuribura of Pialba”.

9    Ms McIntosh has produced a significant amount of material in support of her contentions. As was clear from both her oral submissions at the hearing of 13 May 2013 and her affidavit material, she holds strong and committed views concerning native title in relation to the claim area and her connection to that area, to the point where some material in her affidavit sworn 1 May 2013 is scandalous. However in my view her contentions do not stand up to the expert anthropological evidence produced by the applicant.

10    Ms McIntosh is clearly part of the native title claim group in this proceeding, being a descendant of the “Mother of John and Rose Broome”. She has not identified any separate interest which could be affected by determination in the proceeding, within the meaning of s 84(3)(a)(iii) of the Native Title Act.

11    The applicant submits that the policy contemplated by the Native Title Act is to require an authorised applicant to control the proceeding to ensure the coherent and effective prosecution of the claim, and to prevent dissentient members of the claim group delaying the proper determination of the claim one way or the other. In my view this submission is correct. I note further the extensive discussion of principles concerning dissentient members of the claim group by Mansfield J in Starkey v State of South Australia (2011) 193 FCR 450. Applied to the circumstances before me, it appears that Ms McIntosh is in fact a dissentient member of the claim group, and has not identified an interest in the proceeding separate from that of the claim group. The proper order is that she should cease to be a party to this proceeding.

Associate:

Dated:    19 June 2013